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Garcia v. Zimmerman

United States District Court for the Western District of Texas, Austin Division

August 28, 2023, Decided; August 28, 2023, Filed

Case No. 1:21-CV-01063-SH

JORGE GARCIA, Plaintiff v. ALVIN ZIMMERMAN and M.S.A., INC., Defendants

Counsel: [*1] For Jorge Garcia, Plaintiff: Anna Hart, LEAD ATTORNEY, Dang Law Group, PLLC, Austin, TX.

For M.S.A., Inc., Defendant: Bret Allan Sanders, Fee, Smith, Sharp, & Vitullo, LLP, Austin, TX.

Judges: SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE.

Opinion by: SUSAN HIGHTOWER

Opinion

ORDER

Before the Court is Defendants’ Partial Motion for Summary Judgment as to Plaintiff’s Claims of Gross Negligence, Negligent Hiring, Training, Supervision, and Retention, filed July 21, 2023 (Dkt. 32). On March 20, 2023, the District Court reassigned this case to this Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), Federal Rule of Civil Procedure 73, and Rule CV-72 of the Local Rules of the United States District Court for the Western District of Texas (“Local Rules”). Dkt. 20.

I. Background

Plaintiff Jorge Garcia was driving northbound in the right lane of Interstate Highway 35 in Travis County, Texas on July 29, 2020, when Alvin Zimmerman allegedly “failed to maintain a proper lookout and made an unsafe lane change into Plaintiff’s lane of travel,” crashing into the driver’s side of Garcia’s vehicle. Plaintiff’s Original Petition, Dkt. 1-6 ¶ 6. Garcia alleges that: “The force of Defendant Zimmerman’s impact caused Plaintiff’s vehicle to spin on IH-35 and end up in front of Defendant’s Peterbilt freight truck, where Defendant’s vehicle again struck Plaintiff’s vehicle on the driver’s side, [*2] causing more damage.” Id. It is undisputed that Zimmerman was working in the course and scope of his employment for Defendant M.S.A., Inc. (“MSA”) at the time of the collision. MSA’s Answer to Plaintiff’s Interrogatory No. 13, Dkt. 33-4 at 6.

Garcia filed suit in state court, alleging: (1) negligence and gross negligence against Zimmerman; (2) vicarious liability against MSA under the doctrine of repondeat superior for Zimmerman’s negligence and gross negligence; and (3) negligent hiring, training, supervision, and retention against MSA. Garcia v. Zimmerman, Cause No. D-1-GN-21-005507 (455th. Dist. Ct. Travis County, Tex. Sept. 21, 2021); Dkt. 1-6. Garcia seeks more than $250,000 in personal injury and property damages, as well as attorney’s fees.

Defendants removed the case to federal court based on diversity jurisdiction pursuant to 28 U.S.C. § 1441(b). Dkt. 1. The parties have engaged in written discovery and Zimmerman has been deposed. Defendants seek partial summary judgment on Garcia’s claims of gross negligence and negligent hiring, training, supervision, and retention. Garcia did not respond.

II. Summary Judgment Standard

Summary judgment will be rendered when the pleadings, the discovery and disclosure materials, and any affidavits on file show that there is no genuine dispute as to any material [*3] fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute over a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Washburn, 504 F.3d at 508. A court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); see also Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that no evidence supports the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence and so cannot defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation also are not competent summary judgment evidence. Id.

The party opposing summary judgment must identify specific evidence in the record and articulate the precise manner in which that evidence supports its claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). “Rule 56 does not impose upon the [*4] district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Plaintiff’s Failure to Respond

Garcia did not respond to Defendants’ Motion for Summary Judgment. Under Local Rule CV-7(e)(2), if no response to a motion is filed within the time prescribed by the rule – here, 14 days – the court may grant the motion as unopposed. A motion for summary judgment “cannot be granted simply because there is no opposition, even if the failure to oppose violated a local rule.” Hibernia Nat’l Bank v. Admin. Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). But “if no response to the motion for summary judgment has been filed, the court may find as undisputed the statement of facts in the motion for summary judgment.” Brown v. U.S. Postal Inspection Serv., 206 F. Supp. 3d 1234, 1242 (S.D. Tex. 2016); accord Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988) (finding that district court properly “accepted as undisputed” facts in defendant’s motion for summary judgment when plaintiff filed no response to motion).

IV. Analysis

As stated, Defendants seek summary judgment on Garcia’s claims for gross negligence and negligent hiring, training, supervision [*5] and retention. The Court grants summary judgment to Defendants as to these claims.

A. Gross Negligence Claim against Zimmerman

Garcia asserts both negligence and gross negligence against Zimmerman. In support of his negligence claim, Garcia alleges that Zimmerman was negligent in failing to (1) maintain a proper lookout while driving on a public roadway; (2) use due caution, given the conditions and circumstances on the roadway; (3) maintain proper control of his vehicle; (4) apply the brakes properly or at all to avoid the collision; (5) maintain proper attention while driving on a public roadway; (6) control the speed of his vehicle; (7) control his vehicle to avoid the collision; (8) use the degree of care a person of ordinary, reasonable prudence would have used under similar conditions; (9) maintain a single lane of travel; (10) make a safe lane change; and (11) make a proper lane change; and in (12) violating Chapter 545 of the Texas Transportation Code. Dkt. 1-6 ¶ 12. Garcia relies on these same allegations to support his gross negligence claim, further alleging:

Defendants’ acts and omission of making an unsafe lane change while driving a Peterbilt freight truck on the interstate highway, when viewed objectively from the [*6] standpoint of Defendants at the time of the incident, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and of which Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Accordingly, Defendants [sic] acts amount to gross negligence, which proximately caused Plaintiff’s injuries and damages.

Id. ¶ 17.

Defendants argue that “the list of alleged acts or omissions which Plaintiff contends were committed by Defendant do not rise above the level of a garden variety negligence case even if Plaintiff can prove that Defendant Zimmerman committed every single one of those alleged acts or omissions.” Dkt. 32 at 10. The Court agrees.

When, as here, jurisdiction is based on diversity, courts apply the forum state’s substantive law. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Under Texas law, a plaintiff may obtain exemplary damages if he proves by clear and convincing evidence that the harm resulted from gross negligence. TEX. CIV. PRAC. & REM. CODE § 41.003(a)(3). To show gross negligence, the plaintiff must prove both objective and subjective elements. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). The plaintiff must prove by clear and convincing evidence [*7] that (1) “when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others,” and (2) “the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.” Id. Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).

“Under the first, objective element, an extreme risk is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff,” which is “a threshold significantly higher than the objective reasonable person test for negligence.” Medina v. Zuniga, 593 S.W.3d 238, 247, 249 (Tex. 2019) (cleaned up). To establish the subjective component, the plaintiff must show the defendant “knew about the risk, but that the defendant’s acts or omissions demonstrated indifference to the consequences of its acts.” Waldrip, 380 S.W.3d at 137. The risk should be “examined prospectively from the perspective of the actor, not in hindsight.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). A party cannot be liable for gross negligence “when it actually [*8] and subjectively believes that circumstances pose no risk to the injured party, even if they are wrong.” Waldrip, 380 S.W.3d at 141.

Medina is relevant to the Court’s determination whether Zimmerman’s alleged acts and omissions in this case rises to the level of gross negligence. In that case, a pedestrian sued Christopher Medina, a minor driver, for negligence and gross negligence after Medina’s truck hit Zuniga from behind as Medina pulled out of a school parking lot. 593 S.W.3d at 241. At trial, Medina conceded ordinary negligence but contested the plaintiff’s gross negligence claim. Id. The jury found Medina liable for both negligence and gross negligence. Id. He appealed the jury’s gross negligence finding, arguing that no evidence supported a conclusion that his actions rose above ordinary negligence. Id. at 247.

The evidence at trial showed that Medina: (1) “mess[ed]” with another driver just before the accident by shifting his truck into reverse and backing toward the other driver; (2) accelerated rapidly through the parking lot; (3) did not stop at the parking lot exit and looked only to his left before exiting and hitting Zuniga, who was approaching from the right; (4) attempted to brake before he struck the plaintiff but effectively [*9] braked only after the impact; (5) testified that he was aware other people were on campus at the time of the accident; and (6) drove on the sidewalk as he exited. Id. at 248. The Court of Appeals for the Fourth District of Texas found this evidence sufficient to support the jury’s gross negligence finding. Id. The Texas Supreme Court reversed, holding that Medina’s “clearly negligent conduct” did not satisfy the objective component of gross negligence. Id. at 249. The court emphasized that:

The objective gross-negligence standard must remain functionally distinguishable from ordinary negligence. As to the objective component, an extreme degree of risk is a threshold significantly higher than the objective reasonable person test for negligence. An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent. Viewing the evidence in favor of the jury’s verdict, no doubt exists that Medina’s driving was thoughtless, careless, and risky. But any driver knows that our roads are replete with thoughtless, careless, and risky drivers. Gross negligence can be supported only by an extreme degree of risk, not a remote possibility of injury or even a high probability [*10] of minor harm, but rather the likelihood of serious injury to the plaintiff.

***

Any of Medina’s negligent acts here are common ingredients in a garden-variety car accident, whether involving a pedestrian or another vehicle. Doubtless, the failure to drive at a safe speed and the failure to look both ways before exiting a parking lot makes an accident more likely. But those failures, even taken together, do not amount to gross negligence. If they did, punitive damages would be routinely available in the most common types of auto accidents. Whatever the threshold for gross negligence is, it must be higher than that.

Id. at 249-50 (cleaned up); see also Moerbe v. Adcock, No. 1:20-CV-1018-RP, 2022 U.S. Dist. LEXIS 185264, 2022 WL 5568119, at *8 (W.D. Tex. Aug. 3, 2022) (granting summary judgment on gross negligence claim in a “garden variety” car collision negligence case); Marr v. Croxton, No. SA-21-CV-00961-XR, 2022 U.S. Dist. LEXIS 115155, 2022 WL 2346622, at *3 (W.D. Tex. June 29, 2022) (granting summary judgment on plaintiff’s gross negligence claim in lane-change accident case in which defendant did not see plaintiff’s vehicle before changing lanes because a “garden-variety vehicle collision, such as this one, cannot form the basis of a gross negligence claim”).

Like Medina, this is “a garden-variety” ordinary negligence case that does not rise to the level of gross negligence. The unrefuted summary judgment evidence shows that the [*11] accident occurred when Zimmerman “made an unsafe lane change to the right and crashed the right front side of his truck tractor in to the left side of [Garcia’s vehicle] causing damage.” Crash Report, Dkt. 33-1 at 3. Zimmerman told the Austin Police Department officer on the scene that “he was trying to change lanes to the right and [Garcia’s vehicle] was in his blind spot.” Id. Zimmerman testified at deposition that he was driving in the center lane and changed lanes to the right to pass another vehicle “that was driving real slow in the center lane” when he hit Garcia. Zimmerman Tr. at 53:18-54:3, Dkt. 33-2 at 7-8. Zimmerman testified that he never saw Garcia before he changed lanes because “he was down in my blind spot.” Id. at 54:4-10, Dkt. 33-2 at 8. There is no evidence that Zimmerman was intoxicated or under the influence of narcotics at the time of the accident¹ or that he was driving at a high rate of speed or erratically before the collision.

Garcia has not come forward with clear and convincing evidence that Zimmerman’s acts or omissions “involved an extreme degree of risk” and that he “had actual, subjective awareness of the risk involved, but nevertheless proceeded with [*12] conscious indifference to the rights, safety, or welfare of others.” Waldrip, 380 S.W.3d at 137. The Court grants judgment as a matter of law denying Garcia’s gross negligence claim against Zimmerman.

B. Negligent Hiring, Retention, Training, and Supervision Claims against MSA

Garcia asserts against MSA both (1) a vicarious liability negligence claim under the doctrine of respondeat superior, based on Zimmerman’s negligence, and (2) a direct negligence claim, based on MSA’s own alleged negligent hiring, retention, training, and supervision of Zimmerman. Defendants move for summary judgment on Garcia’s direct negligent hiring, retention, training, and supervision claims against MSA because he has come forward with no evidence to support these claims.

“Under the common law doctrine of respondeat superior, or vicarious liability, liability for one person’s fault may be imputed to another who is himself entirely without fault solely because of the relationship between them.” Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018) (citation omitted). In the employment context, “an employer is vicariously liable for its employee’s negligent acts if those acts are within the course and scope of his employment.” Id. at 131. In contrast, direct claims such as negligent hiring, supervision, [*13] training, and retention are based on the employer’s own negligent conduct in creating an unreasonable risk of harm to others. Williams v. McCollister, 671 F. Supp. 2d 884, 888 (S.D. Tex. 2009).

To prevail on his negligent hiring, retention, training, and supervision claims, like all negligence claims, Garcia must show that (1) MSA owed a duty to Garcia, (2) MSA breached that duty, and (3) the breach proximately caused Garcia’s damages. Holcombe v. United States, 388 F. Supp. 3d 777, 806 (W.D. Tex. 2019); Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 648 (S.D. Tex. 2016).²

An employer owes a duty to its other employees and the general public to ascertain the qualifications and competence of the employees it hires, especially where the occupation at issue could cause hazard to others or requires skilled or experienced persons. Therefore, an employer is liable for negligent hiring, retention, or supervision if it hires an incompetent or unfit employee whom it knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others. In light of these principles . . . a motor carrier has a duty to take steps to prevent injury to the driving public by determining whether an applicant to drive one of its trucks is competent and qualified.

Id.

Garcia offers no evidence that MSA breached its duty to adequately hire, retain, [*14] train, or supervise Zimmerman. Garcia alleges that (1) Zimmerman is “incompetent, unfit, dangerous, or untrustworthy”; (2) MSA failed to investigate Zimmerman’s background; (3) MSA hired Zimmerman, “who was an incompetent and unfit employee” that “create[ed] an unreasonable risk of harm to others”; and (4) MSA’s “failure to investigate, screen, or supervise Defendant Zimmerman proximately caused Plaintiff’s injuries and damages.” Dkt. 1-6 ¶ 15. He submits no evidence to support any of these allegations.

MSA submits evidence showing that it adequately investigated Zimmerman’s background before it hired him and there was no sign that he was an unfit or incompetent driver. Zimmerman received his commercial driver’s license in 1972 and had more than 40 years of experience driving commercial vehicles when MSA hired him. Zimmerman Tr. at 29:23-25, Dkt. 33-2 at 2. Before MSA hired Zimmerman, it performed a motor vehicle record search, requested information from his previous employers, verified that he had at least three years of commercial driving experience, and required him to take a drug test and perform a road test, which he passed. Dkt. 33-3; Dkt. 33-4 at 6, MSA’s Answers to Plaintiff’s [*15] Interrogatories Nos. 14 and 15. MSA also used an electronic logging device to monitor Zimmerman’s location and hours of service. Zimmerman Tr. at 49:25-52:9, Dkt. 33-2 at 3-5. This evidence supports MSA’s argument that it fulfilled its duty to adequately hire, retain, train, and supervise Zimmerman.

Because Garcia comes forward with no evidence that Zimmerman was an unfit or incompetent driver or that MSA breached its duty to adequately hire, train, supervise, and retain him, the Court grants summary judgment to MSA on Garcia’s negligent hiring, training, supervision, and retention claims. Moerbe, 2022 U.S. Dist. LEXIS 185264, 2022 WL 5568119, at *3.

C. Gross Negligence Claim Against MSA

In the gross negligence section of his Petition, Garcia alleges that “Defendants[‘] acts amount to gross negligence,” but he identifies only Zimmerman’s acts and omissions “of making an unsafe lane change.” Dkt. 1-6 ¶ 17. Garcia also incorporates the rest of his Petition, and so appears to assert gross negligence against both Zimmerman and MSA. Id. ¶ 16. MSA argues that Garcia does not allege a viable gross negligence claim against it.

A corporation such as MSA may not be held liable for gross negligence under Texas law unless the corporation itself (1) commits [*16] gross negligence, (2) authorized or ratified an agent’s gross negligence, (3) was grossly negligent in hiring an unfit agent, or (4) committed gross negligence through the actions or inactions of a vice-principal.³ Mobil Oil, 968 S.W.2d at 921-22; Phillips, 189 F. Supp. 3d at 656. Garcia does not allege sufficient facts or submit any evidence to show that any of these theories of recovery apply.

First, because the Court has already determined that Zimmerman was not grossly negligent, MSA could have not authorized or ratified grossly negligent conduct by him. Phillips, 189 F. Supp. 3d at 657. Second, because the Court grants summary judgment on Garcia’s claims for negligent hiring, retention, training, and supervision, summary judgment also is proper on Garcia’s gross negligence claim against MSA on those grounds. Id. Even had Garcia’s negligent hiring claims survived, nothing in the record suggests that MSA was grossly negligent in hiring, retaining, training, or supervising Zimmerman. See Waldrip, 380 S.W.3d at 140 (finding that plaintiff did not prove by clear and convincing evidence that employer was aware, yet consciously indifferent to, the extreme danger caused by hiring a driver with no mechanical experience). Finally, because Garcia does not allege that Zimmerman was a vice-principal [*17] for MSA, or that MSA itself committed gross negligence in any way other than in negligent hiring, retention, training and supervision, Garcia’s gross negligence claim fails.

V. Conclusion

For these reasons, Defendants’ Partial Motion for Summary Judgment (Dkt. 32) is GRANTED and Plaintiff’s claims for gross negligence and negligent hiring, retention, training and supervision are DISMISSED WITH PREJUDICE. Garcia’s negligence claims against Defendants Zimmerman and MSA remain pending.

SIGNED on August 28, 2023.

/s/ Susan Hightower

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

End of Document

¹Zimmerman testified that he underwent a drug and alcohol screening after the collision. Zimmerman Tr. at 63:14-19, Dkt. 33-2 at 9.

²The plaintiff also must establish that the employee committed an actionable tort against the plaintiff. Holcombe, 388 F. Supp. 3d at 806.

³A vice-principal encompasses, inter alia, corporate officers. Mobil Oil, 968 S.W.2d at 922.

Inzunza v. Naranjo

Court of Appeal of California, Second Appellate District, Division Four

August 21, 2023, Opinion Filed

JOSE R. INZUNZA et al., Defendants and Appellants, v. MARIA NARANJO et al., Plaintiffs and Respondents.

Prior History: [*1] APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC678942, Mel Red Recana, Judge.

Disposition: Reversed in part and remanded with directions.

Case Summary

Overview

HOLDINGS: [1]-In a wrongful death action arising from a collision, the trial court prejudicially erred under Code Civ. Proc., § 2033.410, by imputing the driver’s deemed admissions to his employer to establish its liability and precluding the employer from presenting contrary evidence as to liability and comparative fault. An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent; [2]-For purposes of remand, the court found that the instruction on stepchild standing correctly used present tense in the introductory sentence and stated that a stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, upon the decedent for the necessaries of life.

Outcome

Reversed in part and remanded with directions.

LexisNexis® Headnotes

Civil Procedure > … > Methods of Discovery > Requests for Admissions > Content & Form of Admissions

Civil Procedure > … > Methods of Discovery > Requests for Admissions > Responses to Requests for Admissions

Civil Procedure > … > Methods of Discovery > Requests for Admissions > Effect of Admissions

HN1 Requests for Admissions, Content & Form of Admissions

When a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. Code Civ. Proc., § 2033.280, subd. (b). The court shall make this order, unless it finds the party to whom requests for admission have been directed has served, before the hearing on the motion, a proposed response that substantially complies with the discovery statutes. § 2033.280, subd. (c). A deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein. Any matter deemed to have been admitted is conclusively established against the party making the admission but is binding only on the party that made the admission. Code Civ. Proc., § 2033.410, subds. (a) & (b).

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Governments > Legislation > Interpretation

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

HN2 Standards of Review, Abuse of Discretion

Generally, a trial court’s ruling on an in limine motion is reviewed for abuse of discretion. However, statutory construction is a question of law the court decides de novo.

Governments > Legislation > Interpretation

HN3 Legislation, Interpretation

The court begins with the plain language of the statute. If the terms of the statute are unambiguous, the court presumes the lawmakers meant what they said, and the plain meaning of the language governs.

Torts > Public Entity Liability > Liability > Vicarious Liability

HN4 Liability, Vicarious Liability

Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable.

Governments > Courts > Judicial Precedent

HN5 Courts, Judicial Precedent

An opinion is only authority for those issues actually considered or decided.

Civil Procedure > … > Pretrial Judgments > Default & Default Judgments > Default Judgments

HN6 Default & Default Judgments, Default Judgments

Admissions implied from the default of one defendant ordinarily are not binding upon a codefendant who, by answering, expressly denies and places in issue the truth of the allegations thus admitted by the absent party. A party’s default does not bind nondefaulting codefendants, even when the basis for the action against the codefendants is vicarious liability arising from the acts of the defaulting defendant.

Business & Corporate Law > … > Authority to Act > Contracts & Conveyances > Liability of Principals

HN7 Contracts & Conveyances, Liability of Principals

An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent.

Civil Procedure > … > Pretrial Judgments > Default & Default Judgments > Default Judgments

HN8 Default & Default Judgments, Default Judgments

Where there are two or more defendants and the liability of one is dependent upon that of the other, the default of one of them does not preclude the defaulting defendant having the benefit of the codefendants establishing, after a contested hearing, the nonexistence of the controlling fact; in such case the defaulting defendant is entitled to have judgment in his or her favor along with the successful contesting defendant.

Torts > Wrongful Death & Survival Actions > Potential Plaintiffs

HN9 Wrongful Death & Survival Actions, Potential Plaintiffs

Under Code Civ. Proc., § 377.60, subd. (b)(1), stepchildren of the decedent may bring a wrongful death action if they were dependent on the decedent. For purposes of this subdivision, dependence refers to financial support at the time of decedent’s death, or at most, two years before the decedent’s death.

Headnotes/Summary

Summary

CALIFORNIA OFFICIAL REPORTS SUMMARY

In a wrongful death action arising from a collision, the jury returned a verdict against the driver of a tractor-trailer and his employer. (Superior Court of Los Angeles County, No. BC678942, Mel Red Recana, Judge.)

The Court of Appeal reversed the judgment against the employer and remanded for new trial, holding that the trial court prejudicially erred under Code Civ. Proc., § 2033.410, by imputing the driver’s deemed admissions to the employer to establish its liability and precluding the employer from presenting contrary evidence as to liability and comparative fault. An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent. For purposes of remand, the court held that the instruction on stepchild standing in a wrongful death case correctly used present tense in the introductory sentence and stated that a stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, upon the decedent for the necessaries of life. (Opinion by Currey, P. J., with Collins, J., and Zukin, J., concurring.)

Headnotes

CALIFORNIA OFFICIAL REPORTS HEADNOTES

CA(1)[] (1)

Discovery and Depositions § 27—Deemed Admissions—Scope.

When a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted (Code Civ. Proc., § 2033.280, subd. (b)). The court shall make this order, unless it finds the party to whom requests for admission have been directed has served, before the hearing on the motion, a proposed response that substantially complies with the discovery statutes (§ 2033.280, subd. (c)). A deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein. Any matter deemed to have been admitted is conclusively established against the party making the admission but is binding only on the party that made the admission (Code Civ. Proc., § 2033.410, subds. (a) & (b)).

CA(2) (2)

Appellate Review § 126—Scope—In Limine Motion—Statutory Construction.

Generally, a trial court’s ruling on an in limine motion is reviewed for abuse of discretion. However, statutory construction is a question of law the court decides de novo.

CA(3) (3)

Statutes § 30—Construction—Plain Meaning.

CA(4) (4)

Employer and Employee § 26—Vicarious Liability.

Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable.

CA(5) (5)

Courts § 45—Stare Decisis.

An opinion is only authority for those issues actually considered or decided.

CA(6) (6)

Discovery and Depositions § 27—Deemed Admissions—Scope—Vicarious Liability—Contrary Evidence.

In a wrongful death action arising from a collision, the trial court prejudicially erred by imputing the driver’s deemed admissions to his employer to establish its liability and precluding the employer from presenting contrary evidence as to liability and comparative fault. An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent.

[Cal. Forms of Pleading and Practice (2023) ch. 196, Discovery: Requests for Admissions, § 196.17.]

CA(7) (7)

Judgments § 13—Default—Codefendants.

CA(8) (8)

Wrongful Death § 7—Stepchildren—Dependence.

Counsel: Locke Lord, Susan A. Kidwell; Clark Hill and Pamela A. Palmer for Defendant and Appellant CR GTS, Inc.

Clark Hill, Dean Olson, Pamela Palmer; Greines, Martin, Stein & Richland, Robert A. Olson and Laura G. Lim for Defendant and Appellant Jose R. Inzunza.

California Truck Injury Law and Katherine Harvey-Lee for Plaintiffs and Respondents.

Judges: Opinion by Currey, P. J., with Collins, J., and Zukin, J., concurring.

Opinion by: Currey, P. J.

Opinion

CURREY, P. J.—

INTRODUCTION

Jose I.V. Naranjo died after his pick-up truck collided with a tractor-trailer driven by Jose R. Inzunza (Inzunza) for CR GTS, Inc. (CRGTS), an interstate motor carrier. Jose’s surviving spouse (Maria ), their four adult children (Griselda, Araceli, Jose Jr., and Oscar), and Jose’s two adult stepchildren (Carla and Luis) (collectively, plaintiffs)¹ brought this wrongful death action against defendants and appellants Inzunza and CRGTS (collectively, defendants).

The jury returned a verdict in favor of plaintiffs. CRGTS appeals from the judgment, contending: (1) the trial court prejudicially erred by precluding [*2] it from contesting liability and comparative fault and, instead, imputing Inzunza’s deemed admissions to CRGTS to establish its liability; and (2) the verdicts in favor of the stepchildren must be vacated because no substantial evidence supports a finding that they were financially dependent on the decedent at the time of his death—an essential element of standing to bring a wrongful death claim under Code of Civil Procedure section 377.60, subdivision (b)(1).² Inzunza separately appeals from the judgment, contending: (1) the jury’s award of noneconomic damages to Maria was excessive as a matter of law (CRGTS joins this argument); and (2) in addition to the lack of evidence to support the stepchildren’s standing, the trial court also improperly instructed the jury regarding the necessary elements for stepchild standing in a wrongful death action.

For the reasons discussed below, we agree with CRGTS’s first contention and conclude the trial court prejudicially erred by precluding CRGTS from presenting evidence contesting liability and of comparative fault. Accordingly, we reverse the judgment against CRGTS and remand the action for a new trial against CRGTS. The judgment against Inzunza is set aside pending the outcome of the new trial. We [*3] address defendants’ additional contentions only to the extent they regard issues likely to arise on retrial.

FACTUAL AND PROCEDURAL BACKGROUND³

In December 2015, Jose was involved in a fatal car accident involving a tractor trailer driven by Inzunza and owned by CRGTS. According to eyewitnesses, a portion of the tractor trailer was partially blocking the left lane of a divided highway when Jose’s vehicle collided with it.

Plaintiffs filed a wrongful death action against Inzunza and CRGTS, alleging a single cause of action for negligence.⁴ They alleged defendants were negligent and proximately caused Jose’s fatal injuries. They further alleged Inzunza was driving the tractor trailer while working for CRGTS in the course and scope of his employment.

Plaintiffs later propounded requests for admission on Inzunza. The requests sought the following admissions, among others: Inzunza was negligent, Inzunza’s negligence caused the accident, no negligence on the part of the decedent caused or contributed to the fatal injuries he sustained, and Inzunza’s negligence proximately caused the fatal injuries to decedent. Despite receiving multiple extensions of time to respond, Inzunza failed to serve any [*4] responses to the requests. Thus, plaintiffs filed a motion for an order that the truth of each matter specified in the requests for admission propounded on Inzunza be deemed admitted under section 2033.280, subdivision (b).⁵ In opposition to the motion, Inzunza’s counsel explained they lost contact with Inzunza despite multiple attempts to reach him, including by hiring two private investigators. The court found that “[w]hile [Inzunza’s] counsel demonstrates that they made reasonable efforts to locate and contact [Inzunza], [Inzunza’s] counsel does not show [Inzunza] is not attempting to evade the lawsuit or discovery demand.” On that basis, the court granted plaintiffs’ motion, and “deem[ed] admitted the truth of the matters set forth in Requests for Admission, Set One, to defendant Jose R. Inzunza.”

Plaintiffs also propounded requests for admission on CRGTS. Several of the requests were the same as those propounded on Inzunza, including: admit that Inzunza caused or contributed to the accident, admit Inzunza was negligent, admit the negligence of Inzunza was the cause of the fatal injuries to Jose, and admit no negligence on the part of Jose caused or contributed to the fatal injuries he sustained. CRGTS provided [*5] verified responses denying these requests.⁶

Before trial, plaintiffs filed a motion in limine to preclude defendants “from offering evidence, expert opinion, exhibits, writings, testimony, reference or argument contrary to the Requests for Admissions propounded to [Inzunza] which were deemed admitted by court order … .” Plaintiffs argued the admissions by Inzunza conclusively established that Inzunza caused the accident and Jose bore no comparative fault. Thus, according to plaintiffs, “the court must exclude any opinion testimony by … experts, or indeed any other evidence or argument that conflicts or casts doubt on the admitted liability of [Inzunza].” CRGTS filed its own motion in limine for “an order permitting evidence regarding liability … as to … CRGTS . …” After hearing argument, the trial court granted plaintiffs’ motion and denied CRGTS’s motion on the ground it was moot. The trial court explained that CRGTS could present evidence that Inzunza was acting beyond the scope of his employment, and therefore, CRGTS is not vicariously liable. The court ruled CRGTS could not, however, present evidence of comparative fault.

Just before the start of trial, the court [*6] heard argument on how to implement its decision to grant plaintiffs’ motion in limine to preclude evidence contrary to Inzunza’s deemed admissions. CRGTS’s counsel explained: “[W]e had three eyewitnesses … who had been deposed. … We were prepared to provide their testimony that it appeared that the decedent was not paying attention; he never put his brakes on, they saw the vehicle but somehow the decedent didn’t see or react to the vehicle.” In response, plaintiffs’ counsel argued Inzunza’s deemed admissions “precluded any evidence coming in that would contradict those deemed admissions,” and that meant that “not CRGTS, not [p]laintiffs, not anybody [sic] can bring in evidence contrary [to] or contesting deemed admissions.” The trial court agreed with plaintiffs.

At trial, plaintiffs read Inzunza’s deemed admissions to the jury. Plaintiffs also called two of Jose’s grandchildren, his two stepchildren, his four children, his surviving spouse, and a damages expert to testify. Unable to contest that Inzunza was entirely at fault for the accident, defendants called only a damages expert to testify about the value of Jose’s household services.

The jury returned a verdict in favor [*7] of plaintiffs. The jury determined Inzunza was negligent and his negligence was a substantial factor in causing harm to Jose and plaintiffs. The jury also determined Inzunza was the agent of CRGTS and was acting within the scope of his agency when he harmed Jose and plaintiffs. The jury awarded a total of $7,619,000 to plaintiffs, including Jose’s two adult stepchildren. The court entered judgment on the verdict, holding CRGTS and Inzunza jointly and severally liable.

Defendants moved for a new trial and for partial judgment notwithstanding the verdict. The court denied both motions. CRGTS and Inzunza each appealed from the final judgment.

DISCUSSION

1. Inzunza’s Deemed Admissions Do Not Preclude CRGTS From Introducing Evidence Contrary to Those Admissions

A. Governing Principles and Standard of Review

HN1 CA(1) (1) When a party to whom requests for admission are directed fails to serve a timely response, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. …” (§ 2033.280, subd. (b).) The court “shall make this order,” unless it finds the party to whom requests for admission have been directed has served, before [*8] the hearing on the motion, a proposed response that substantially complies with the discovery statutes. (§ 2033.280, subd. (c).) “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979 [90 Cal. Rptr. 2d 260, 987 P.2d 727].) Any matter deemed to have been admitted “is conclusively established against the party making the admission” but “is binding only on th[e] party” that made the admission. (§ 2033.410, subds. (a) & (b).)

CA(2) (2) HN2 “‘Generally, a trial court’s ruling on an in limine motion is reviewed for abuse of discretion.’” (Appel v. Superior Court (2013) 214 Cal.App.4th 329, 336 [153 Cal. Rptr. 3d 798].) Here, however, the trial court’s order was predicated on its interpretation of section 2033.410. We therefore exercise de novo review. (Ibid [“‘Statutory construction is a question of law we decide de novo’”].)

B. Analysis

Plaintiffs acknowledge, as they must, that deemed admissions are conclusively established only against the party making the admission. (§ 2033.410, subds. (a) & (b).) Plaintiffs nevertheless contend the trial court correctly ruled CRGTS was also precluded from introducing evidence on the issues of liability and comparative fault because that evidence would directly contradict Inzunza’s deemed admissions, and CRGTS’s liability is merely derivative of Inzunza’s [*9] based on the doctrine of vicarious liability. CRGTS counters that precluding it from introducing evidence contrary to Inzunza’s deemed admissions effectively makes Inzunza’s admissions binding on CRGTS. CRGTS explains that because it is vicariously liable for Inzunza’s tortious conduct, prohibiting it from introducing evidence of liability and comparative fault imputes Inzunza’s failure to respond to requests for admission to CRGTS in violation of section 2033.410, subdivisions (a) and (b). For the reasons discussed below, we agree with CRGTS.

HN3 CA(3) (3) We begin with the plain language of the statute. (Estate of Griswold (2001) 25 Cal.4th 904, 911 [108 Cal. Rptr. 2d 165, 24 P.3d 1191] [“If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs”].) As noted above, section 2033.410 provides, in relevant part, that any matter deemed admitted “is conclusively established against the party making the admission” and is “binding only on that party.” (§ 2033.410, subds. (a) and (b), italics added.) It is undisputed that Inzunza failed to respond to plaintiffs’ requests for admission propounded on him, and the trial court correctly deemed the matters in the requests admitted by Inzunza. It is also undisputed, however, that CRGTS timely responded to plaintiffs’ requests for admission, [*10] and denied some of the same requests as those deemed admitted by Inzunza (i.e., that Inzunza negligently caused the accident and that Jose was not comparatively at fault). The basis of plaintiffs’ action against CRGTS is vicarious liability arising from the acts of Inzunza. CA(4) (4) HN4 Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable. (See Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1426 [8 Cal. Rptr. 3d 668] [“[v]icarious liability of an employer is not based on fault and is wholly derivative”].) Thus, by precluding CRGTS from introducing evidence contesting liability, the trial court saddled it with Inzunza’s deemed admissions—making his admissions of fault binding not only on Inzunza, but also CRGTS, in violation of section 2033.410.

CA(5) (5) Despite the clear language of the statute, plaintiffs argue “[u]nanimous authorities preclude any party from introducing evidence to contest deemed admissions being held against the party who made them.” (Italics added.) There are two problems with this argument. First, plaintiffs appear to rely on Murillo v. Superior Court (2006) 143 Cal.App.4th 730 [49 Cal. Rptr. 3d 511] (Murillo) and People v. $2,709 United States Currency (2014) 231 Cal.App.4th 1278 [180 Cal. Rptr. 3d 705] ($2709 United States Currency) for the proposition that section 2033.410 prevents all parties from introducing evidence contrary to deemed admissions. The courts in those cases stated the “general [*11] rule [that] an admission is conclusive in the action as to the party making it” and “no contradictory evidence may be introduced.” (Murillo, supra, 143 Cal.App.4th at p. 736; $2709 United States Currency, supra, 231 Cal.App.4th at p. 1286.) Neither case, however, involved multiple defendants. Thus, the courts in Murillo and $2709 United States Currency had no occasion to address the issue here, i.e., whether a defendant may introduce evidence contrary to a codefendant’s deemed admissions to demonstrate the party’s (as opposed to codefendant’s) non-liability. (See Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1076 [135 Cal. Rptr. 2d 361, 70 P.3d 351] [“‘It is a well-established rule that HN5[] an opinion is only authority for those issues actually considered or decided’”].)

Second, contrary to plaintiffs’ assertion, Inzunza’s deemed admissions were, in practical effect, used against a party that denied the very same requests. As discussed above, CRGTS is vicariously liable for its agent’s negligence if the agent was acting within the scope of his agency. (See Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 502 [288 Cal. Rptr. 3d 1, 501 P.3d 211].) But Izunza was not acting as CRGTS’s agent when he failed to timely deny the requests for admissions addressed to him. Thus, while it is fair to hold CRGTS liable for Inzunza’s actual actions and inactions during the course and scope of his employment as its agent, it is unfair to hold CRGTS liable for deemed admissions of fault [*12] resulting from Inzunza’s failure to timely respond to the requests for admissions.

We likewise reject plaintiffs’ argument that the jury instructions preclude any party from introducing evidence contrary to the deemed admissions of one defendant. The instruction given to the jury on requests for admission, California Civil Jury Instruction (CACI) No. 210, provides: “Before trial, each party has the right to ask another party to admit in writing that certain matters are true. If the other party admits those matters, you must accept them as true. No further evidence is required to prove them.” But nothing in the jury instruction states the jury must accept those matters as true as against a party who denied the same requests.⁷

The parties have not directed us to, and we have not located, a case directly addressing the issue presented, i.e., whether the deemed admissions of an agent preclude the principal from introducing evidence of liability and comparative fault. In an analogous context involving defaulting defendants, however, courts have held that admissions implied from the default of one defendant are not binding on a codefendant who answered, and expressly denied, the allegations in the complaint.

For example, in Taylor v. Socony Mobil Oil Co. (1966) 242 Cal.App.2d 832, 833 [51 Cal. Rptr. 764] (Taylor), the plaintiff [*13] sued Socony Mobil and its employee for malicious prosecution. The employee failed to answer the complaint and his default was entered, but Socony Mobil answered, “denying all material allegations of the complaint.” (Ibid.) The action went to trial against Socony Mobil and at the conclusion of plaintiff’s case, the trial court granted Socony Mobil’s motion for nonsuit. (Ibid.) On appeal, the plaintiff did “not seriously argue that he presented testimony constituting a prima facie showing of lack of probable cause or of malice” but argued “proof of these issues is supplied by the pleadings” because the employee admitted the allegations in the pleadings by failing to answer the complaint. (Id. at pp. 833–834.) The Court of Appeal affirmed the judgment, explaining: “The validity of plaintiff’s argument rests upon his major premise that an admission implied from the default of one defendant is binding upon an answering codefendant who has denied the relevant allegations of the complaint. His position is untenable.” (Id. at p. 834.) HN6[] Rather, “the correct rule … [is] ‘ … that admissions implied from the default of one defendant ordinarily are not binding upon a codefendant who, by answering, expressly denies and [*14] places in issue the truth of the allegations thus admitted by the absent party.’” (Ibid.)

Similarly, in Western Heritage Insurance Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1199–1200 [132 Cal. Rptr. 3d 209] (Western Heritage), the court held an intervening insurer was permitted to litigate the issue of liability notwithstanding its insured’s default. The court explained: “A party’s default does not bind nondefaulting codefendants, even when the basis for the action against the codefendants is vicarious liability arising from the acts of the defaulting defendant.” (Id. at p. 1211.)

Plaintiffs’ attempt to distinguish these cases is unavailing. First, plaintiffs claim Taylor and Western Heritage involved “default[ing] parties with wildly different procedural postures and fact patterns.” They point to the fact that in Taylor, the defaulting employee never answered the complaint or appeared in the case, and in Western Heritage, the employee’s answer had been stricken at the plaintiff’s request. We fail to understand the significance of these distinctions. Whether the defendant fails to answer the complaint, or to respond to requests for admission, facts are established by his or her failure to respond. Thus, the principles expressed in Taylor and Western Heritage should equally apply here (or perhaps with even greater force in the deemed admissions context) because the controlling statute [*15] explicitly states admissions by one party are “binding only on that party[.]” (§ 2033.410, subd. (b).)

Next, plaintiffs contend CRGTS “misapplies another holding in Taylor.” We disagree. In Taylor, as an additional reason in support of its holding, the court explained that, “under the rules of evidence[,]” declarations of an agent are admissible only when made during the course of his agency and at the time the event occurred. (Taylor, supra, 242 Cal.App.2d at p. 834.) The admissions in Taylor, the court explained, were made not only after the event occurred, but also after his employment had terminated. (Ibid.) Thus, the employee’s admissions implied from his default could not bind his employer. (Ibid.) So too, here. Inzunza’s admissions were deemed to have been made long after the accident in 2015. This additional point in Taylor, therefore, lends further support to CRGTS’s argument that the principles in Taylor should apply here.

HN7[] CA(6)[] (6) In sum, we conclude an agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent. ⁸ To hold otherwise would directly contradict the plain language of section 2033.410. The trial court therefore erred by precluding CRGTS from introducing [*16] evidence of non-liability and comparative fault. This error clearly was prejudicial. We therefore reverse the judgment against CRGTS and remand for a new trial. CA(7)[] (7) The judgment against Inzunza must be set aside pending the outcome of that trial. (See Adams Mfg. & Engineering Co. v. Coast Centerless Grinding Co. (1960) 184 Cal.App.2d 649, 655 [7 Cal. Rptr. 761] [“[W]here HN8[] there are two or more defendants and the liability of one is dependent upon that of the other, the default of one of them does not preclude his having the benefit of his codefendants establishing, after a contested hearing, the nonexistence of the controlling fact; in such case the defaulting defendant is entitled to have judgment in his favor along with the successful contesting defendant”]; see also Western Heritage, supra, 199 Cal.App.4th at p. 1210, fn. 18 [“[I]f the action is still pending against a party which may be jointly liable with the defaulting insured, it is improper to enter judgment against the defaulting defendant while the action remains pending against the other defendant”].)

2. Additional Contentions of Error at Trial

In light of our conclusion that the case must be remanded for a new trial, we need not address defendants’ other contentions (i.e., no substantial evidence that the stepchildren were financially dependent on the decedent at the time of his death, and the [*17] noneconomic damages awarded to Maria were excessive as a matter of law). To assist the parties and the trial court, however, we address Inzunza’s instructional error contention because it is likely to arise on retrial.

CA(8) (8) Inzunza contends the trial court’s instruction on stepchild standing contained the wrong standard. HN9 Under section 377.60, subdivision (b)(1), stepchildren of the decedent may bring a wrongful death action “if they were dependent on the decedent[.]” For purposes of this subdivision, dependence refers to financial support at the time of decedent’s death, or at most, two years before the decedent’s death. (See, e.g., Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1445, 1447–1148 [111 Cal. Rptr. 2d 534].)

The trial court gave the following instruction, proposed by plaintiffs: “Under California law, a stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, upon the decedent for the necessaries of life. No strict formula can be applied to determine this. If a stepchild received financial support from their parent which helped them in obtaining the things which one cannot and should not do without, then that stepchild is dependent upon their parent and is qualified to bring a wrongful death claim. Such things may include, but are not limited to, shelter, [*18] clothing, food, utilities, car payments, medical treatment, and other customary living expenses.” Inzunza asserts the instruction “erroneously implied that dependence could occur at any point in the stepchild’s life” rather than “present dependence.” (Original italics.) He argues defendants’ proposed instruction included the necessary temporal restriction. Their proposed instruction provided, in part: “[I]n order for you to award damages to either [Carla or Luis], you must find that either stepchild was dependent on the decedent. Dependence is defined as financial support, ‘actually dependent, to some extent, upon the decedent for necessaires of life … which aids them in obtaining the things, such as shelter, clothing, food and medical treatment which one cannot and should not do without.’”

We are unpersuaded. Indeed, we find defendants’ proposed instruction is not any clearer on the temporal issue than the instruction given. We therefore conclude the trial court did not err by giving plaintiffs’ proposed instruction, which correctly used present tense in the introductory sentence: “[A] stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, [*19] upon the decedent for the necessaries of life.” (Italics added.)

DISPOSITION

The judgment against CRGTS is reversed and the matter is remanded for a new trial against CRGTS. The judgment against Inzunza is set aside pending the outcome of that trial. In the event plaintiffs decide not to retry the action, the trial court is instructed to enter a new judgment against Inzunza only. Assuming that happens, this opinion does not prejudice Inzunza’s right to appeal from the new judgment, and renew his arguments raised in this appeal that we have not decided (i.e., the noneconomic damages awarded to Maria were excessive as a matter of law and the stepchildren lacked standing to bring a wrongful death claim) on the ground those arguments may be moot depending on whether plaintiffs retry the case. CRGTS is awarded its costs on appeal.

Collins, J., and Zukin, J., concurred.

End of Document

¹Because the decedent and some of the plaintiffs share a surname, we use their first names when referring to them individually to avoid confusion.

²All further undesignated statutory references are to the Code of Civil Procedure.

³Except for background facts included for context, we limit our recitation of the facts to those relevant to the issues we are deciding.

⁴Plaintiffs also sued Kershaw Fruit & Cold Storage, Inc., and later added Carlos Gonzalez as a defendant. Neither party remained in the case at the time of trial.

⁵Section 2033.280, subdivision (b) states, in relevant part: If a party to whom requests for admission are directed fails to serve a timely response, the “requesting party may move for an order that … the truth of any matters specified in the requests be deemed admitted … .”

⁶CRGTS originally provided unverified responses to the requests for admission, and plaintiffs obtained an order from the court deeming the requests admitted based on the “incomplete,” “evasive,” and unverified responses. It is undisputed, however, that the parties entered into a stipulation under which the order deeming the requests admitted was withdrawn, and CRGTS ultimately served verified responses to the requests for admission.

⁷We note that, in brackets, CACI No. 210 states: “However, these matters must be considered true only as they apply to the party who admitted they were true.” And, in the directions for use of the instruction, it states: “The bracketed phrase should be given if there are multiple parties.” It appears on the record before us that neither party requested this sentence be included in the instruction. On retrial, in accordance with the directions for use of the instruction, the bracketed sentence should be included.

⁸We note other jurisdictions have reached the same conclusion. (See, e.g., Riberglass, Inc. v. Techni-Glass Industries, Inc. (11th Cir. 1987) 811 F.2d 565, 566–567 [Even where the liability of a guarantor depends on the liability of a co-party, deemed admissions of the latter that it is indebted to the creditor do not justify the entry of judgment against the guarantor who has responded sufficiently to requests for admissions]; see also Alipour v. State Auto. Mut. Ins. Co. (N.D. Ga. 1990) 131 F.R.D. 213, 215–216, fn. 3 [even in cases involving defendants whose rights or liabilities are derivative of the party who failed to respond to material admissions, the deemed admissions of one defendant are not binding on the codefendant].)